Attempt to end victim “blame game”

Wednesday 17 June 2020

Grooming, possession of paedophilic materials and other specific sexual offences will finally be enshrined in criminal law today, while an amendment led by Deputy Gavin St Pier could fundamentally change the way that consent is defined in order to "protect the victims of sexual violence".

The States approved the long-awaited modernisation of Guernsey’s Sexual Offences laws earlier this year, and deputies are expected to today ratify the legislation that has been drawn up since.

Updating the legislation will mean that sexual offences including revenge pornography, upskirting and grooming, which the courts have had to deal with under more general sexual offence laws for years, will finally be criminalised.

While that modernisation of Sexual Offences legislation has been dragged out for nine years for various reasons since the States first approved it in July 2011, another significant reform could be endorsed in a fraction of the time if an amendment by Deputies Gavin St Pier and Lindsay de Sausmarez is successful.

Explaining the purpose of the amendment, Deputy St Pier said: “If you are charged with a crime, it is the prosecution’s job to prove, beyond a reasonable doubt, that you committed the offence. In the case of a number of sexual offences, this includes proving that the victim did not consent to the sexual act committed. This is known as the burden of proof: it rests with the prosecution on behalf of the victim. There are some exceptions. If the victim was threatened with violence or given a so-called ‘date rape drug’ such as Rohypnol, the Court will presume that the victim did not consent, so it will then be up to the accused to prove that the victim did consent. In other words, the burden of proof, on the question of consent, has been shifted from the prosecution to the defence.

Deputies are receiving loads and loads of e mails at the moment on 3 main areas: the Abortion changes; the Discrimination proposals; and on the St Pier amendment to the Sexual Offences Law.

— Christopher Green (@deputycgreen) June 16, 2020

 Pictured:  Deputy Green said States members had received a lot of public feedback on the proposals.

"As the proposed law stands at the moment, if a victim goes into a bar and has something slipped into their drink that renders them incapable of consenting, the accused will need to prove that consent was in fact given; but if the same victim goes into a bar and has a number of drinks rendering them equally incapable of consenting, then the victim will need to prove that consent was not given.

"This is victim blaming pure and simple; it is saying to the victim: ‘if you go and get drunk, you are fair game; you need to keep yourself safe because if you don’t and something happens to you, it will be your job to prove you did not consent.’ I find that abhorrent and unconscionable; and we will do what we can to persuade the States of Deliberation to rectify the position.

"Our amendment is simple. It says that it really doesn’t and shouldn’t matter how a victim got into a state that meant they could not give consent – the fact is they could not give consent, the legal burden of proof should lie with the accused, not the victim."

Pictured:  Home Affairs has drawn up the new Sexual Offences legislation.

The Home Affairs Committee has reportedly rejected the amendment, and Deputy St Pier is unhappy with the reasons they gave him.

“Their argument, in essence, was that the draft law should follow the law in England and Wales – the Sexual Offences Act 2003 – on this point as the legal precedents and jurisprudence in England and Wales can then be more readily applied in our courts. I think that is irrelevant. We want what is right to protect the victims of sexual violence in Guernsey and a 20 year old English statute is irrelevant to that objective.”

The Sex Offences amendment is making a significant judicial change on the hoof with no consultation. Abortion update has also suffered from lack of consultation because of Covid focus. Discrimination is too much and hasn't convinced the industry we need to #surviveandthrive

— Horace Camp (@oldfarmhorace) June 16, 2020

Pictured: Some have expressed concerns with implementing such far-reaching changes without proper consultation and consideration first.

The amendment, as well as the wider sexual offences legislation, are expected to be debated today based on where they currently sit in the running order of the States agenda for this week.

Pictured: Deputy Gavin St Pier.